Clyde Snow

Stay-at-Home Orders: How employers can prepare for mandatory lockdown measures

by | Mar 25, 2020

In response to growing concerns regarding the spread of COVID-19, 17 states have issued mandatory stay-at-home orders. The lockdown orders generally prohibit residents from leaving their homes except for essential needs, such as grocery shopping or seeking urgent medical care, and require that all “non-essential businesses” close. Four additional states have ordered all nonessential businesses to close, but have stopped short of issuing stay-at-home orders.

Currently, Utah has no stay-at-home or lockdown order in effect. While it is impossible to predict how the state government will respond to the growing pandemic, there are several measures Utah employers can consider and plan for now that will help prepare their business and employees for a potential lockdown.

Is my business an “essential” business?

            While the lockdown orders have varied from state-to-state, most regulations have identified the following as “essential” industries, businesses, and workers:

  • Healthcare and Public Health, including workers providing COVID-19 testing, healthcare providers and caregivers, hospital and laboratory personnel, etc.
  • Emergency Services, including law enforcement officers, public safety employees and first responders, etc.
  • Public Works, including workers who support bridges, water and sewer main breaks, plumbers, electricians, exterminators and other service providers who provide services that are necessary to maintain residences, and security and alarm protection services and necessary installation for business and residences, etc.
  • Food and Agriculture, including groceries, pharmacies, and other retail stores that sell food and beverage products, restaurant carry-out operations, food manufacturer employees, and farm workers, etc.
  • Energy, including workers who maintain the distribution of power, petroleum workers, natural and propane gas workers, etc.
  • Water and Wastewater, including workers at community water systems and wastewater treatment facilities
  • Transportation and Logistics, including aviation and airport personnel, mass transit and passenger rail services, railroads, and postal and shipping carriers, etc.
  • Communications and Information Technology, including news media, communications infrastructure employees, and employees that provide to support to transitioning employees who set up and maintain home offices, network operations employees, etc.
  • Community-Based Government Operations and Essential Functions, including security staff, elections personnel, trade officials, weather forecasters, operations center employees, workers supporting public and private childcare establishments, construction workers, and legal or accounting services when necessary to assist in compliance with legally mandated activities, etc.
  • Critical Manufacturing, including workers necessary for the manufacturing of materials and products needed for medical supply chains, transportation, energy, communications, food and agriculture, etc.
  • Hazardous Materials, including workers at nuclear facilities and workers who support hazardous materials response, etc.
  • Financial Services, including workers who are needed to process and maintain systems for processing financial transactions, workers who are needed to provide consumer access to banking and lending services, etc.
  • Chemical, including workers supporting the chemical and industrial gas supply chains, workers supporting the safe transportation of chemicals, etc.
  • Defense Industrial Base, including businesses that support the federal government and defense contractors.

Most lockdown orders gave less than two days for residents to fully comply with the new restrictions. If your business and/or employees do not fit within any of the categories identified above, you should begin to consider and plan for what changes your business will be required to make. This could potentially include measures to transition your workforce to work from home, including purchasing the necessary technology and equipment. If your employees cannot work from home, you should consider whether you will need to temporarily modify individual work assignments, furlough, and/or terminate employees.

What measures am I required to put in place to protect an “essential” employee or an “essential” place of business?

Even if your business is considered an “essential” business, or if you have “essential” employees that must continue to work, most lockdown orders require that these employers implement social distancing measures and require that all employees stay at least 6-feet apart at all times. Other employers have separated staff by off-setting shifts based on hours or days.

In addition, essential employers are required to increase sanitation measures under these orders. Other lockdown orders have not identified specific sanitation measures, but this would reasonably include providing hand sanitizer to employees, ensuring that employees are not sharing pens, phones, computers, desks, etc., and ensuring that restrooms and other shared workspaces are cleaned and sanitized on a daily basis.

It is also important to be mindful that all employers have an obligation to provide a safe workplace for their employees, and employees cannot waive their right to a safe work environment. There is no “at your own risk” standard for workplaces and, therefore, employers will be required to make a decision as to whether they believe they can make the work environment safe. Failure to do so could open up the employer to liability. As such, employees should be encouraged to work remotely when possible.

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